Same Sex Marriages

When the U.S. Supreme Court decided on June 26, 2013, in United States v. Windsor, that Section 3 of the Federal “Defense of Marriage Act” (which limited the definition of “marriage” under Federal law to exclude same-sex marriages) is unconstitutional, it placed same-sex marriages in New Hampshire on the same footing as all other marriages.

For Federal Estate Tax planning purposes, married same-sex spouses residing in New Hampshire may leave an unlimited amount to a surviving spouse, without incurring Federal Estate Tax. In addition, for same-sex married spouses in New Hampshire with large, individual estates may take advantage “spousal portability” allowing a surviving spouse to use a deceased spouse’s unused exemption amount. (See Article on “Federal Estate and Gift Tax Update”).

Additionally, if one member of a same-sex marriage needs Medicaid assistance to pay for long-term care costs, the couple may be able to shield more assets from having to be “spent down” under the “spousal impoverishment” provision of the Medicaid law, now that same-sex marriages are recognized by the Federal government in states such as New Hampshire that have same-sex marriage. On the other hand, the assets of both spouses are considered in an application for Medicaid to cover nursing home care.

Same-sex married spouses in New Hampshire may now inherit an IRA (Individual Retirement Account) from a spouse who passes away and roll that IRA into the surviving spouse’s own IRA, postponing required minimum distributions until the survivor turns 70 1/2. This may allow the IRA to continue growing longer, tax deferred.

The attorneys in our Estate Planning Practice Group would be happy to meet with same-sex couples, married or not, to discuss their options for estate planning.